Islam and the Death Penalty

William Schabas

The debate about the imposition of capital punishment may be as old as the supreme penalty itself. The circumstances of its imposition and administration, as well as the wisdom of its use altogether, have preoccupied jurists, scholars, philosophers, and theologians for many centuries. This debate has been transformed, in the last half of the twentieth century, with the injection of a new element, the international law of human rights. Initially addressing the issue implicitly, with the proclamation of the right to life and the prohibition of cruel, inhuman, and degrading treatment or punishment, in articles 3 and 5 respectively of the 1948 Universal Declaration of Human Rights, the law has steadily and inexorably developed in this area. By the end of the twentieth century, some sixty states had ratified international treaties prohibiting capital punishment, and the issue itself had become one of the pre-eminent debates in such important international forums as the General Assembly of the United Nations and the Rome Conference on the International Criminal Court.

International legal developments were, of course, nothing more than the reflection of changes in national practice. According to the latest report of the Secretary-General of the United Nations on the subject of capital punishment, issued in March 2000, seventy-four states are now totally abolitionist, thirty-eight are de facto abolitionist, and eleven are abolitionist for ordinary crimes. A total of 123 states are included in one of these three categories. By comparison, only seventy-one states are listed by the Secretary-General as being retentionist. According to the Secretary-General, forty-six states have abolished the death penalty since 1985. … Within the international arena, those states taking the initiative to defend capital punishment are a disparate lot. The group includes such states as Singapore and Malaysia, who invoke “Asian values” and whose practical concerns on the matter seem closely related to the battle against traffic in narcotic drugs. Another active participant is Rwanda, a country where the death penalty has fallen into abeyance except for the very specific issue of the appropriate punishment for perpetrators of genocide. Several members of the Commonwealth or English-speaking Caribbean are very involved: they generally attribute their interest in the subject to the excited state of public opinion and, in some cases, high rates of violent crime. But without any doubt, the core of the campaign that fights further progress of international law in the area of abolition of the death penalty lies with so-called Islamic states. Geographically these countries are located in the Middle East—the state with the largest Moslem population in the world, Indonesia, plays no role in the debate—and have governments characterized by repressive, undemocratic policies in a wide range of areas. This group includes two of the world’s leaders in the practice of capital punishment, in a quantitative sense, namely Iraq and Iran.

This bloc of Islamic states quite regularly and vocally insists that its position is the inexorable consequence of Moslem law. …

ISLAMIC LAW DOCTRINE ON THE DEATH PENALTY

A stereotypical presentation of Islam suggests that it is a conservative, misogynistic, and retributive religion. Even those with only a superficial acquaintance with the subject know better, of course. As in all religions, there are progressive and reactionary currents of thought. Even so-called “Islamic” states differ widely on many aspects of religious doctrine. Thus, in the international debates it is troubling to hear blunt pronouncements affirming that “Islam favors capital punishment,” as if this view meets with unanimous and unqualified support throughout the Moslem world.

…Despite popular impressions to the contrary, Moslem penal law is characterized by a strong undercurrent of clemency and sympathy for the oppressed. Punishment is ordered to be free of any spirit of vengeance or torture.

Islam professes the basic principle that everyone has the right to life. However, this principle, stated in the Koran, allows for an exception. Killing is only allowed when a court of law demands it: “Do not kill a Soul which Allah has made sacred except through the due process of law.” Therefore, this exception authorizes the administration of capital punishment when Islamic law dictates. Intriguingly, the Islamic law position would seem to be the same as that found in the Fifth Amendment to the United States Constitution and such international instruments as the European Convention on Human Rights.

Islamic law arose out of various sources, but more specifically from the teachings of the prophet Muhammad. It developed in a formal sense during the seventh and eighth centuries (670-720 AD). Its two most important elements are the Shari’a and the Fiqh. Shari’a refers to the sacred laws and ways of life proscribed by Allah. The Koran and the Sunna or Sunnah comprise the Shari’a. These are considered the most important sources of Islamic law. The Koran is considered to be the primary source of guidance because it is regarded as the spoken word of Allah. The Sunnah refers to the words and actions of the Prophet. The Shari’a is said to deal with ideology and faith, behavior and manners, and practical daily matters. It is a comprehensive body of norms covering “every aspect of life including international, constitutional, administrative, criminal, civil, family, and religion.” The Fiqh, or Islamic jurisprudence, on the other hand, refers to the legal rulings of the Muslim scholars derived from the Shariah. The Fiqh is a second important source of guidance for Islamic law.

Islamic penal law consists of four systems or categories. In the first, that of Haad or Houdoud, important crimes deemed to threaten the very existence of Islam are punishable pursuant to penalties set by the Koran itself, or by the Sunna or Sunnah. Islamic jurists consider that these sanctions are set and immutable, and conclude that the judge is left with no discretion. Houdoud crimes consist of adultery, defamation, theft, robbery, rebellion, drunkenness, and apostasy. Several Houdoud crimes are punishable by death, specifically robbery, adultery, and apostasy.

The second system, Quissas, concerns intentional crimes against the person. Its fundamental premise is the lex talionis, that is, “eye for eye, tooth for tooth,” and is set out in the Koran, in verse 5.32 (further developed by verse 17.33). Actually, the lex talionis appears as early as the Code of Hammurabi. Even then it was a progressive penal reform aimed at enhancing the principle of proportionality, although it is now seen as a basis for retribution. According to the Koran, it is the victim or his or her heirs who are to inflict the punishment, although they do this under the supervision of public authorities. The victims of such crimes may pardon the offender, in which case the penalty set by Quissas will not be imposed. In such cases, two other systems of crime and punishment become relevant. These are Diya, which prescribes restitution or compensation for the victim, and Tazir, by which public authorities set their own punishment and in which the judge has wide discretion. Under Tazir, public authorities may provide for capital punishment, but no religious text requires them to do so.

Under Islamic law, execution should be public in order to enhance its alleged effect of general deterrence. It is to be carried out with the sword, as a general rule, except in the case of adultery, where lapidation is employed.

Although essentially all Moslem or Islamic countries retain the death penalty in their domestic law, practice varies considerably from one to another. Some, like Iran and Iraq, are enthusiastic practitioners, while others, such as Tunisia, conduct executions in only the rarest of cases. The religious argument is invoked frequently, yet the diversity of practice would suggest there is little consensus even among Moslems as to the scope of capital punishment. For example, Sudan has taken the position that offenders may be executed for crimes committed while under the age of eighteen, “in accordance with provisions of Islamic law.” Yemen, on the other hand, recently banned the juvenile death penalty, although it was argued that this step was taken “despite Islamic law.” The Libyan Arab Jamahiriya recently informed the United Nations Special Rapporteur on Extrajudicial, Summary, and Arbitrary Executions, Ms. Asma Jahangir, that “the aim of the Libyan society is to abolish the death penalty.”

In 1981, the Islamic Council adopted a Universal Islamic Declaration of Rights, which states: “(a) Human life is sacred and inviolable and every effort shall be made to protect it. In particular no one shall be exposed to injury or death, except under the authority of the law.” The final phrase appears to permit capital punishment and is in any case consistent with the practice of all Islamic states. The Islamic Conference has prepared a document on human rights and Islam, in which Article 2 guarantees the right to life to “every human being” adding: “il appartient aux individus, societes et Etats de proteger ce droit contre toute violation eventuelle, et il est interdit de mettre fin a une vie quelconque, sauf lorsque cela est en accord avec Ia chari’a.”

The Arab Charter of Human Rights, adopted September 15, 1994, but not yet ratified by any members of the League of Arab States, proclaims the right to life in the same manner as the other international instruments. However, three distinct provisions, Articles 10, 11, and 12, recognize the legitimacy of the death penalty in the case of “serious violations of general law,” prohibit the death penalty for political crimes, and exclude capital punishment for crimes committed under the age of eighteen and for both pregnant women and nursing mothers for a period of up to two years following childbirth.

Reynaldo Galindo PohI, formerly Special Rapporteur of the Commission on Human Rights on Iran, observed that “there are groups of Islamic-legal scholars and practitioners who recommend the abolition of the death penalty for political crimes on the ground that it is contrary to Islamic law. They state that the number of crimes punishable by death is limited.” In October 1995, human rights activists from throughout the Arab world met in Tunis to consider the issue of capital punishment. The meeting, which featured specialists on religion, philosophy, and criminal law in Arab states, was a joint initiative of the Arab Institute for Human Rights and the Citizens and Parliamentarians League for the Abolition of the Death Penalty “Hands Off Cain,” with the support of the European Community. In a declaration adopted at the conclusion of the meeting, the participants affirmed their shared “commitment to the abolition of the death penalty as a strategic move.” They also stated “that within the Arab civilizational and cultural background, no real impediments exist and obstruct the evolution of secular legislations in the process of setting up limits to the death penalty and abolishing it.” The statement concluded with a call to Arab states to adopt the Second Optional Protocol to the International Covenant on Civil and Political Rights, which constitutes an international legal commitment not to impose capital punishment.

CAN ISLAMIC LAW EVOLVE?

Conservative Islamic states fighting to retain capital punishment use religious arguments in order to force the debate into one of cultural or religious norms, where it appears that one set of moral values is being imposed upon another in a form of philosophical or cultural imperialism. The argument is disarming for many who oppose capital punishment in the “North,” and seductively demagogic for those who oppose it in the “South.” Of course, the Bible also contemplates capital punishment for such crimes as magic, violation of the sabbath, blasphemy, adultery, homosexuality, relations with animals, incest and rape. Yet Judeo-Christian jurists will rarely argue that this ancient text must dictate contemporary legal practice.

Obviously, there is some basis for the claim that capital punishment is part of Islamic law. Its scope, however, is considerably more limited than certain Islamic states like to claim in international debates. Capital punishment is a mandatory penalty under the Shari’a for only a small category of crimes. It was plainly incorrect to assert, as some Islamic states attempted during the negotiations surrounding the adoption of the Rome Statute, that there was some principle at stake, because Islamic law in no way mandates capital punishment for the crimes falling within the jurisdiction of the International Criminal Court, namely, genocide, crimes against humanity, and war crimes.

It seems unarguable that the crimes for which Islamic law mandates the death penalty—adultery and apostasy—cannot by any effort at interpretation be deemed to be the “most serious crimes” for which the death penalty may be imposed in accordance with Article 6(2) of the International Covenant on Civil and Political Rights. In interpreting the provision, the Human Rights Committee has stated that imposition of the death penalty for crimes that do not result in loss of human life is contrary to the Covenant. During its consideration of Iran’s periodic report, the Committee specifically cited imposition of the death penalty for adultery as being incompatible with the country’s international human rights obligations. Yet many of the vocal Islamic states have ratified that instrument without reservations concerning Article 6(2). In other words, they seem already to have Accepted international norms that are at variance with Islamic law under a strict construction. Therefore, their argument by which they must obstruct the evolution of international norms on capital punishment on religious grounds is inconsistent with their previous practice in the area of international human rights.

Throughout the development of Islam and Islamic law, there have been times when theory and practice did not coincide. While it has been argued that Islamic law governs the social order of Islamic societies, this has not prevented the Shari’a from being amended or ignored when the environment dictated. This has been referred to as darura, the doctrine of necessity. The doctrine of necessity dispenses Moslems from observing religious laws when the situation or environment dictates otherwise.

One example of this phenomenon is drawn from the realm of international relations. Islam does not recognize other non-Islamic legal systems because one of its stated goals is the spread of the Moslem faith. However, the reality of the modern international system of nations enjoying sovereign rights has prevented this from being upheld strictly. Consequently, a secular approach to “the conduct of foreign relations has been accepted by most Islamic states, whether they are completely secularized in their internal legal structure, as in the case of Turkey, or still recognizing the Shari’a as their basic law, as in Saudi Arabia and the Yemen.” Some of the same conservatives who have objected to any deviations from the internal law of Islam have accepted marked departures from traditional Moslem law governing foreign relations. It might also be noted that Islamic leaders have often opted to cooperate with foreign governments in the selection of military technology. Even the concept of holy war jihad, by which religion justifies aggressive war waged against “infidels” and “enemies of the faith,” is so obviously incompatible with Article 2(4) of the Charter of the United Nations. Interestingly, at the Rome Diplomatic Conference, the Arab and Islamic states were among the most insistent for including the crime of aggression within the subject matter jurisdiction of the International Criminal Court. Yet by the same reasoning that they claim capital punishment is an inherent aspect of their religion, it might be argued that any definition of the crime of aggression should also recognize the legality of holy war. But we are unlikely to hear such an argument. …

All Islamic countries have demonstrated some degree of flexibility in the interpretation of Islamic law in these or other areas. Yet, they stubbornly refuse to acknowledge that the same approach may be undertaken with respect to the death penalty. It appears that religion is little more than a pretext to justify a resort to harsh penalties that is driven by backward and repressive attitudes in the area of criminal law.

William Schabas is professor and chair of the department of law at the University of Quebec, Montreal.

Originally published in William and Mary Bill of Rights Journal 9:1 (December 2000): 223-237. Reprinted with permission of the publisher.